*1
рlaintiff
by the District Court
has demonstrated that all
as found
the facts
finding
police
a
basis for
cadets hired from 1972-75 who
constitute a sufficient
“reasonably certain” that the
police
their
that it was
continued as
cadets until
21st
po-
promoted to
plaintiff
birthday
have been
would
were
fact entered into officers
departure to serve
for his
training
lice officer but
school within 3 months of their
ques-
to this
review as
military.
Our
if
birthday
they
21st
had served at least a
Paper
States
plenary. See
period
police
tion is
one-year probationary
as a
Gulf
(11th
F.2d
Corp.
Ingram,
v.
turning
plaintiff
21. The
cadet before
cases).
Cir.1987) (citing
police
would have served as a
cadet at least
birthday
year
a
before his 21st
had he not
R.R.,
v. Missouri
Tilton
Pacific
employ
City Taylor police
left the
time. Southern Cf. Co., F.2d tric Cir. Steel
1969) af (drawing a distinction between managerial negative discre
firmative and
tion). only issue is therefore whether LEAMAN, Mary Kate foresight was a cer “with there reasonable Plaintiff-Appellant, high probability
tainty” i.e., a —that — plaintiff have achieved the status would the rest of his class had he not officer with MENTAL RE OHIO DEPARTMENT OF two entered the forces. There are armed TARDATION & DEVELOPMENT DIS becoming police in the methods of officer ABILITIES, al., Defendants-Appel et City by entering Taylor. One lees. police program. Police officers must cadet No. 85-3471. old; however, years be 21 one can become police cadet at 18. When one enters Appeals, United States Court of program given one is the same test cadet Sixth Circuit. ing police potential as the officers are Reargued 1986. Nov. according eligibility. is ranked When a age 21 he is police cadet reaches the July Decided eligible police officer for advancement to being again, provided that without tested working requirements
he has met the department. *2 in complete court of claims results action, cause of based on . omission, filing
the same act which the party has state officer or employee.” 2743.02(A)(1). Ohio Revised Code § *3 department The favor of the here; challenged is not what contested is holding electing the district court’s department to sue the in the Ohio Court Claims, plaintiff voluntarily waived her Cincinnati, Mezibov, Ohio, against for cause of action the individual Marc D. de- plaintiff-appellant. fendants. Gen., Atty. vote, Piperni, By A. Asst. three-judge panel
Deborah divided Columbus, Ohio, Mangan, Tim Gene Hollik- this dismissing court reversed the order defendants-appellees. (argued), against employees. er for case the individual On petition rehearing, eight for of the fifteen LIVELY, Judge, Before Chief and judges active of the full court voted to ENGEL, KEITH, MERRITT, banc, rehear the case en as authorized JONES, KENNEDY, MARTIN, 46(c), 28 U.S.C. and an order was entered § WELLFORD, KRUPANSKY, vacating panel reargu- decision. After MILBURN, GUY, NELSON, RYAN ment, but before issuance deci- final BOGGS, Judges. and Circuit sion, judges one of the who had voted for rehearing en banc recused himself from NELSON, Judge. A. Circuit DAVID participation. question further A was then appeal This is an from a district court meeting raised anat administrative of the 783) (reported F.Supp. at 620 order ought court as to whether the recusal to be Judge which Chief Carl Rubin dismissed an deemed to relate back to the vote on the Leaman, Mary action that Plaintiff Kate petition rehearing. Judge Lively for Chief probationary employee former of the Ohio ruled that the recusal was not retroactive. Retardation, Department had of Mental discussion, After and on duly motion made brought against department and cer- voted, seconded, and the court as the min- terminating tain of its officials for her em- reflect, meeting utes of the to “sustain the ployment. complaint alleged that the ruling ratify of the chair and to the action discharge violated 42 U.S.C. voting of the court en banc rehear- (the U.S.C. Rehabilitation Act ing.” Only remaining three of the four- 1973), First and Fourteenth judges teen voted the motion. Amendments. procedural This chain events has suing After the defendants in federal caused members two of the serious court, Ms. Leaman elected to file a virtual- addressing concern. Before the merits of ly complaint identical in the Ohio Court appeal explaining why we believe Department Claims Mental judgment of the trial court must be Judge Retardation alone. Rubin then dis- affirmed, therefore, we shall set forth missed the federal As the De- action. why inappro- do not consider it reasons we Retardation, partment of Mental the dis- deciding priate for the full court to be this soverеign immunity missal was based on case at this time. defendants, grounds. As to the individual Judge applied provision Rubin I (in Ohio Claims Act that reads pertinent part) as follows: Judge ruling on the Chief sustain- retroactivity question, and the vote
“Except in the case of a civil action
state,
ruling
ratifying the decision
filing
ing
filed
a civil action
appeal
banc,
rehear
en
are
ing
consistent
and Rehearing
in Banc,”
Cases
way
with the
in which at least one other
F.R.D.
(1954)).
circuit has dealt
question
with the
retroactivity
recusals under 28
If
U.S.C.
it
makes
difference whether
455(a). See United
States v. Widgery,
recusal was mandatory in
778 F.2d
Cir.1985), and Unit
bears emphasis that the mere fact of recu-
ed
v. Murphy,
States
768 F.2d
1541 sal does not mean that the recusing judge
—
(7th Cir.1985),
denied,
cert.
U.S. -,
had concluded
his
recusal was manda
(1986),
tory.
455(a)
Section
of Title
requires
teach that such recusals are prospective
disqualification only
judge’s
where a
impar
only and do not
prior judicial
invalidate
tiality “might reasonably
questioned.”
actions. Our decision to go forward with Here the recusing judge, who as a member
this proceeding en banc is also consonant
of the lower house of the
legislature
Ohio
with the Supreme
concept
Court’s
that vot
sponsor
was a
of the Ohio Court of Claims
ing on whether to rehear a case en banc “is Act, has never believed that his role as a
*4
essentially
policy
a
decision of judicial ad
legislator could reasonably draw
ques
into
ministration,” Moody v.
Paper
Albemarle
tion his ability to participate impartially as
Co.,
622, 627,
417
2513,
U.S.
94
2516,
S.Ct.
judge
a
in this case. We are
required
not
41
(1974),
L.Ed.2d 358
policy
and a
decision
to decide whether he is
this,
correct in
but
as to which “each Court of Appeals is
we note that his view is consistent with the
vested with a wide latitude of discretion to
practice of the late Chief Justice Fred Vin
decide for
just
itself
power
how that
shall
son and the late Justices Harold Burton
be еxercised.” Western
R. Corp.
Pacific
Hugo
and
Black, who as members of
Co.,
Western
the
R.
247,
345 U.S.
Pacific
United
States
259,
656, 662,
routinely
97
sat
L.Ed. 986
“
on cases involving legislation
The end
passed
to
by
be served
such
while
decisions
‘is
Congress.1
they were
to enable
members of
the court to maintain
its
re-
integrity
as an
cusal
institution
statute has
making
possible
it
embodied an “objective”
for a
majority of
judges
its
standard only
1974,
since
always
sure,
control
to be
and
and
thereby to secure
judicial
views on
uniformity and
mores
continuity
do sometimes
in its decisions....’”
United
change
States v.
see,
over
e.g., Philip Elman’s
time —
American-Foreign Steamship Corp.,
oral
363
reminiscences on “The Solicitor Gener
685,
689-90,
1336,
80
1339,
S.Ct.
Office,
al’s
4
Frankfurter,
Justice
and Civil
(1960)
(quoting Maris, “Hear- Rights Litigation, 1946-1960,” 100 Harv.L.
1. See also
the
In Matter
Sullivan,
Thomas W.
Assuming
recusing
of
that
judge’s
the
sponsor-
514,
283 Ala.
219
denied,
So.2d
cert.
ship of the Ohio
of
Court Claims Act constituted
826,
70,
396 U.S.
(1969),
Rev. 817 —but Lime, correct, F.Supp. panel 710 whether the Division decision Inc. v. might victory plaintiff a senior district have won (N.D.Miss.1983), where case involv- would almost cer- from a district court remand recused himself judge proved Pyrrhic. he voted as a tainly had have Without ing a bill for which earlier, eight decades counting judge, more than four there are legislator recused holding published decision who now judges know of no active of this court believe we correctly Chief Justice practice followed district court ruled that the and Black is no Barring change Burton dismissing and Justices Vinson action. court, longer permissible. no composition of the there is appeal on a second suppose reason to not move for case did plaintiff again have the court would not voted recusal, moreover, notwithstanding that put us hear the case en banc. This would himself ultimately recused judge who now, except exactly where we are argu- throughout the oral was on bench litigants and their counsel and the trial sponsor- notwithstanding that his ment all wasted a fair amount court would of Claims Act was ship of the Ohio Court remand, litigants of time after the plaintiff’s public record. The matter money, in or- spent would have additional could be con- for recusal failure to move point get der to to a where the full significance, marginal to have some sidered say appeals prepared would be whether suggest that the perhaps, insofar right result in the district court reached recusal not consider plaintiff herself did plaintiffs in the first dismissing the suit however, not, Mandatory or mandatory. *5 think the district court did reach place. We academic; acting on his question the is now result, no right and we see common the motion, in fact recuse judge the did own postponing our decision sense reason for on himself. question. view, academic, Hardly in our less n And so we turn to the merits of retroactivity. was question of There appeal. parties to brief no reason to ask the ought to question the recusal of whether II retroactive, because, by have been deemed Retarda- Department The of Mental post-recusal court ex Ohio large majority, Leaman as a case hired Plaintiff for an en banc tion pressly ratified the vote December management specialist on was not the rehearing. What ratified was proba- hired as a Ms. Leaman was ruling Judge on the retroactivi of the Chief tionary employee appointment whose was ruling ty question was “sustained”— —that final, under Ohio Revised not to become original the court in decid but the action of 124.27, satisfactorily she had en Code until ing be reheard banc. case would regu- period fixed probationary Ratification, according the common served days. Ms. Leaman’s lation at 120 calendar understanding, equivalent previous to a “is her service satis- superiors did not consider time back to authorization and relates [the] signed done, them a letter except factory, and two of when act ratified [the] 4, 1984, informing her that she April persons dated intervening rights of third where position. her The being removed from Dictionary was are concerned." Black's Law why it had of reasons gave letter a number Ed.1979). majority an absolute When not meet the that she could court, concluded acting without the recus- been of the full job. requirements of the ing judge, ratify “to the action voted rehearing,” voting court in en banc an discharge appealed her Leaman Ms. tunc to rehear pro nunc voting it was Review, Board the State Personnel en case banc. appeal. She then which dismissed action, naming as ratification, brought if her court If there had been no such Department of Mental retroactive, the Ohio defendants the recusal had deemed been superiors in of her and Retardation four panel if had been reinstat- decision department. complaint alleged and the same party, namely the State of discharged, that Ms. Leaman had Ohio,” been when the issues “apparently are be- of her under violation the United ing determined in federal court.” States Constitution and the federal Reha- Under Ohio Revised Code 2743.20 and Act, bilitation because she expressed had Rule 4 of the Ohio Appellate Rules of Pro- disagreement with depart- controversial cedure, the decision of the Court of Claims policies regarding mental mildly retarded could have been appealed to the Ohio Court juveniles. complaint sought reinstate- Appeals for the Appellate Tenth District backpay, ment an award costs and by filing of a notice of appeal on or fees, attorney relief, injunctive punitive before June 1985. Judge Rubin dis- $25,000 damages against each individual missed the federal action May defendant. some three weeks before the deadline for essentially An complaint, identical appealing the decision of the Court stripped of the individual Claims. Ms. Leaman appeal did not defendants, was later filed the de- Court of decision, Clаims perfect but did partment in the Ohio Court of Claims. appeal to this court from the dismissal That dismissed complaint, holding her federal case. appealable a final decision that Ms. Lea- Ms. Leaman contends that her filing of' discharge man’s was in accordance with the Court of Claims suit could have had no state law. The Court of Claims also held impact adverse on her federal court action probationary that a state job does not con- against the employees, individual state be- “property” protected stitute under the Due cause the Ohio statute limited waiver Process Clause of the Fourteenth Amend- arising to claims under state law and be- ment. The Claims was unmoved cause the statute itself made the waiver by Ms. Leaman’s First Amendment and in any void event. In the alternative Ms. claims, Rehabilitation Act which in that argues Leaman provision court’s view confused the issue: real inconsistent with 42 U.S.C. “By what ever name the claims are given not be effect because of the made, this court appeal construes it as an Supremacy Clause of the United States challenging and decision of *6 Constitution. We argu- do find either agency. The court could visual- persuasive. ment ize situations every person where termi- during probationary period
nated could claim that his First Right Amendment Ill speech’ ‘free has been violated. This highly questions court The Ohio whether that Court Claims Act waives the intent the First sovereign Amendment. As state’s immunity and declares 794(A) the 29 [sic], U.S.C. that the state consents to be sued in the these deal with the handicapped Court of Claims. Like most laws that em- persons. permit To a probationary work- body compromises among conflicting inter- er who has worked in her probationary ests, the statute represent does not a total position for less than 120 days, and who victory for people gained class of who obviously disаgreed superiors with her the most from its enactment. Under the state a would, cause of action ... statute, [in] seen, as we have claimants who opinion, represent court’s entirely might wish to advantage take of the state’s position.” untenable sovereign waiver of its immunity put are commented, The Court of Claims on notice that the in conclu- waiver will be effective sion, that a appeared only they Section 1988 as to them if action themselves waive brought have any cognate been they might federal court “virtu- claims ally contemporaneously,” against and the employees. state’s And the confessed that it had “difficulty under- tells statute suitors in prospective standing why the pending case is in the Court of Claims cognate that the waiver of Claims involving the same issues complete claims will be “a waiver of that the act or omission filing party court determines of action ... cause scope manifestly outside was employee.” or officer any state against
has
employ-
office or
employee’s
or
officer’s
2743.02(A)(1) (empha-
Code
Revised
Ohio
employee
or that
the officer or
ment
supplied).
sis
purpose,
in bad
acted with malicious
“any,” as used
the stat
The word
faith,
or reckless man-
or in a wanton
See United States v.
ute,
unambiguous.
ner.”
Cir.1986),
Winson,
hold
F.2d 754
complaint does not
Ms. Leaman’s federal
strict construction
ing
even under
individual defendants who
allege that
statutes,
“any
the words
criminal
accorded
maliciously or outside
discharged her acted
922(h)(1), are
court,”
in 18 U.S.C.
as used
employment. None-
scope of their
do not ex
unambiguous”
“patently
State,
Hoene v.
theless,
Van
citing
Ohio
providing
In
that an
foreign courts.
clude
(Hamilton
363,
waiver of her ployees decision, the em- individual appeal might choose to and she fact, would been have "void." In the well had to live with it have if there had even just opposite; Court of Claims held the it held provision been no waiver in Ohio statute. the discharge that the was "in accordance" with the waiving party may against have constitutionality such an offer can tion” the New light employees. in of Town Where claimant elects such
hardly be doubted
-,
Claims,
107 S.Ct.
in
in
480 U.S.
the state
the Court of
Rumery,
to sue
ton v.
(1987),where the Su
words,
employees
giv-
L.Ed.2d
the state’s
are
other
Court,
“traditional com
applying
preme
affirmative defense which the federal
en an
incorporated in federal
principles”
mon-law
jurisdiction
duty
and the
court has both
at -,
law,
by Mr.
we
no
Ohio was under
Leaman’s
dismiss Ms.
court’s decision to
sued at
duty to let itself be
constitutional
than
clearly
more
correct
case was even
all,
for the
and it was not unreasonable
Rumery’s
in Mr.
corresponding decision
plaintiffs
prospective
to tell
—in
case.
by the United
not unlike those used
words
in the Federal Tort Claims
States itself
bargain,
to her
holding
Ms. Leaman
agree
you
to let
sue the
will
Act—“we
clearly
not
un-
did
labor
the district court
agree to surrender
sovereign
you
if
will
voluntary
misapprehension
der the
sovereign’s
ser
your claims
some-
claim
waiver of a federal civil
depth of
considers the
vants.” When one
of federal court
how amounts to a waiver
pockets
comparison
sovereign’s
of the Ohio
jurisdiction. Under the terms
servants’,
when one
depth
statute,
statutory offer
acceptance of the
re
that Ms. Leaman was
remembers
jurisdic-
of federal
results not in a waiver
rein
right
her
to seek
give up
employ- quired to
against state
tion to
suits
entertain
suit
through
injunction
ees,
of ac-
statement
“any
cause
but
a waiver of
*9
against
Department
the
of Mental Retarda-
not available to her before its enactment
tion, it is hard for us to see
the
how
does not ipso
make the Act unconsti-
facto
possibly
thought
could
tutional,
have been
course,
and Ohio Revised Code
guilty
overreaching.
2743.02(A)(1) no
puts justice
§
more
on the
auction block than does its counterpart
It
is the reasonableness
choice
the Federal
Act,
Tort Claims
28 U.S.C.
prospective plaintiffs
offered
like Ms. Lea-
2676. Under federal
§
law tort claimant
prevents
man that
the Ohio Court of
who wishes to sue the United States for
Claims
running
Act from
afoul of the “un-
damages under 28
1346(b)
U.S.C.
put
§
constitutional condition” doctrine to which
notice
28 U.S.C.
any
that
gave
Mr. Justice
eloquent
Sutherland
ex-
judgment
in such an action will constitute
Frost & Frost Trucking Co. v.
prеssion
“a complete
any
bar to
action
the claim-
Railroad
California,
Commission
ant, by reason of the
subject
same
matter,
46 S.Ct.
(1926).
See Home Insurance once adversary system, our “[u]nder Morse, Wall.) 445, 451, York v. (20 U.S. of counsel defendant has the assistance (1874) (“... may decisions, strategic citizen L.Ed. 365 array of trial vast rights to he tactical, no which doubt waive must made before be long entitled”). line cases be And the during trial rests with accused require for holding may not Any approach that a state other attorney. his right their eign corporations judges to surrender duties of trial rewrite the would them to federal legal system.” actions remove in our and counsel doing with court a condition of business deemed to counsel must be Ms. Leaman’s includes Harrison in the state —a line that suing the price known that Co., Francisco R.R. v. St. Louis & San would Court of Claims (1914)— 58 L.Ed. punitive dam- of Ms. Leaman’s surrender contrary, as the nothing teaches to the superiors age against her claims Rumery, supra, confirms. decision in Retardation, unless Department of Mental persuaded could be considered, of Claims how the Court It remains to be acted outside erred, individuals ever, those whether the district maliciously.3 employment or scope of their bar, finding “[b]y filing the case at explore any court to duty of Claims, It was not the Plaintiff has in the Ohio Court of damage punitive her price enough re- ceed with when one seems small malice, the claims absent finding the individuals —and the Court of calls that a of malice anyway. pro- had no merit Leaman to Claims would have enabled Ms. adequacy of communication between The matter was debated at a court meet- ing. client and counsel permitting before Two alternatives were proposed. *11 complaint in Several judges of Claims suit argued to be that original vote to accepted filing. And rehear the where a claimant case nullity was a be- judge’s cause represented by competent later counsel has recusal should re- late back and cancel his accept statutory elected to vote in Ohio’s offer to favor of rehearing the case. subject judges argued Other itself to suit in the Court of Claims that the case properly was reheard exchange in en banc for a and that the subsequent recusal judge of a officials, nothing individual state in the had no judge’s effect on that prior vote to Constitution entitles the repudi- claimant tо rehear the case. judge The chief ruled that ate the waiver if or he she loses the in suit the later recusal did nullify the recus- the Court of and Claims does not even ing judge’s prior participation in the en appeal the decision. procedures. banc ruling This upheld was judgment The of the district court is by an 11 to 3 vote and the case was as- AFFIRMED. signed judge a prepare to proposed a disposition. It pointed out that every
LIVELY, Judge, Chief concurring and judge would have an opportunity to vote dissenting. finally proposed when the opinion was cir- culated and express disagreement with I concur in portion that of the majority the resolution of the procedural en banc opinion holding that judge the decision of a issue. of this court to withdraw from further participation in en proceedings banc follow- The procedures en banc of this court are ing rehearing does not relate and back (28 controlled statute 46(c) U.S.C. § nullify judge’s (1982)), earlier vote to rehear (Rule a national rule Fed.R. However, this case en banc. App.P.) I (Rule 14, from and a local dissent rule Rules of Circuit). the decision majority the Sixth on the steps merits Several are in- which designating affirms the volved in district court’s a particular dismissal case for rehearing en this banc. case. party
Either a or judge who would sit on the en may banc court “suggest” I. that a appropriate case is for rehearing en The vote in rehearing favor of case this 35(b), banc. Rule Fed.R.App.P.; Rule was 8 to judges with active voting. all 14(a), Rules of the Sixth No Circuit. action judge who recused himself partic- from suggestion is taken on the unless a judge ipating in the en decision banc case regular who is in judge active service or a did so shortly argument after oral re- sitting by designation who was a member hearing. He stated recusing that he was panel original rendered deci- himself from participаtion. “further” sion requests suggestion. a vote on the tentative vote of the court at conference 35(b), Rule Fed.R.App.P. When such a re- 8was to 7 in favor affirming the district quest received, judges is active court, judge with the subsequently who ballot, court vote majority and a of all filed the voting notice of recusal with judges regular active service must vote majority. His left the recusal court request favor of the rehearing before en apparent an However, tie vote. the vote at 35(a), banc be ordered. Rule Fed.R. conference is always tentative. Another App.P.; 46(c). A U.S.C. vote to re- member the en court banc notified all hear a en case banc has the effect of vacat- members of the court he intended ing opinion the previous judgment change his conference vote from court, reversal staying the mandate restor- of the district to affirm- ing the case on the docket as a pending ance. No other judge changed 14(a), his her appeal. Rule of the Sixth Rules Cir- vote, leaving split the court 8 to 6 for cuit. The court that rehears the case en affirmance. judges regu- banc consists of all circuit senior circuit The Eleventh prohibits
lar active service
Amendment
fed
eral
who was member
court actions
judge of the circuit
states. How
ever,
being
decision
reviewed
Court created a “fiction”
panel
whose
parte Young,
Ex
participate.
elects
en banc and who
(1908),
46(c).
permits
L.Ed. 714
U.S.C. §
injunction against a state official
has
who
eligibility
participate in the vari-
Since
unconstitutionally,
acted
because an official
rehearing
steps leading to
en banc is
ous
acting
longer represents
so
no
the state.
step, eligibility
same for each
not the
In this case Ms.
sought prospec
Leaman
by judge’s
determined
status at the time
injunction
tive relief
the form of an
Thus,
judge
particular step is reached.
*12
against continuation of unlawful conduct
regular
is in
active service
a
who
when
in
complaint,
described
the
reinstatement
made,
rehearing en
suggestion for
banc is
position,
to her
equitable
and other
relief in
panel
who
not on the
whose deci-
but
damages.
to
equitable
addition
This
relief
review,
suggested
may request
sion is
for
a
granted by
could be
a federal court without
However,
judge
vote.
if that
assumes sen-
violating the Eleventh Amendment. Edel
the vote is taken
or she
ior status before
he
Jordan,
man v.
Further,
eligible
is not
to vote.
if the same
II.
KEITH,
Judge, dissenting, joined
Circuit
JONES,
by
Judge.
R.
NATHANIEL
Circuit
Judge
I
in
concur
Merritt's
on the
dissent
merits,
separately
point
and write
out an
majority
this
exalts
reversing
additional basis for
the district
provision
plaintiff’s right
waiver
above
court’s dismissal
this
action.
acts,
seek relief for unconstitutional
re-
litigant’s diligent pursuit
wards a
sought
Ms. Leaman
to vindicate First
1983 remedies with total exclusion
U.S.C. §
rights by bringing
Amendment
an action
from a state or federal forum and charac-
federal district court under 42 U.S.C.
holding
terizes the effect
its
terms
1983. The four
she
individuals that
§
simple
metaphor,
if
contractual
as Consti-
charged
infringing
her constitutional
rights
tutional
are bushels of wheat and
rights
supervisors.
were her
She could not
the Constitution itself
the Restatement
persons
sue these
in the
Ohio Court
(Second)
I
of Contracts.
dissent.
I do
legally
Claims.
not believe Ohio could
require
give
aggrieved
up
right
permits
Ms. Leaman to
her
citizen
Section
quid
seek relief from
for the unconstitu-
these individuals as a
to seek relief
pro
quo
government
taking advantage
for
of state or local
tional acts
A
sovereign
acting
State’s limited
under color of state law.
waiver
immuni- officials
ty
permits
damages
1983 is therefore
her to seek
from cause of action under §
of contract action. The
State
the Court of
not like a breach
Claims.
remedy
latter seeks a
the violation of a
(Blackmun,
S.Ct. at 2000
J. dissent-
parties.
contract between two discrete
ing).
Our analysis should balance the poli-
former, however,
predicated
on a com- cies behind the federal
law
pact
nothing
that does
less than allocate
application,
specific case,
this
power
government
and the
between
provision.
governed.
by
government
Limitations
regard
With
Leaman,
to Ms.
the most
on a citizen’s access to
must
relief
§
important policies underlying
1983 in-
since,
carefully scrutinized,
therefore be
compensation
clude
persons
injured by
action,
the very nature of a
deprivation
of federal
preven-
government is
party
an interested
and the
tion of
power
abuses of
by those acting
affected are of
interests
constitutional
under color
Robertson,
of state law.
magnitude.
majority opinion
fails to
U.S. at
mits undermines our separation rights powers, rises and falls on the matter, contractual the recusal it could principle of accord and satisfaction. public diminish integrity confidence in the independence judiciary. of the federal majority’s opinion part parcel The I therefore dissent. tendency of an on this Court to unwise remedy point to the narrow § nullity. have held that 1983 relief is We § I. deprivation liberty for the available proceeds erroneously Court on the Beebe, property. or of See Wilson v. premise that access to the federal courts Cir.1985)(Keith, dissenting F.2d 578 J. bargained can be away by operation of the part, concurring part). Now we find provision in the Ohio It statute. oper- 1983 relief to conditioned on posits marketplace adjudication for where provision. ation a state waiver If this practical effect the Ohio “[i]n path Circuit continues to follow it has standing Claims Act is a offer for a settle- upon, nothing started there will be left to ment of employees state stripped 1983. We will have 1983 of exchange for an op- otherwise non-existent meaning.
its basic fibre and That outcome portunity to sue the state itself for dam- comforting some, may be it is anath- but ages.” Opinion of the p. Court at anyone ema who holds Constitutional Unfortunately, marketplace theory such a higher Hopefully, dear. and wiser metaphor adjudication contrary majority's court will correct decision. proper jurisdiction view firmly established in decisions of the Su- MERRITT, Judge, dissenting. Circuit preme Court. involving
This case provi- “waiver” legislature’s phrase use of the sion of the Ohio Court of Claims Act raises *14 “any cause of provi- action” in its waiver major questions. two The first is whether legisla- sion does not mean that the state the Ohio statute should be construed so as intended, tors should held to apply be or waiver rule that would oust a read, bar, the statute should be question jurisdic- federal court federal withdraw or “waive” rights tion in exercise civil cases. The second feder- judicial power in al these cases. judge's whether a Without a decision to recuse him- contract, figura- real a state cannot strike a involving legislation self in a case which he “bargain” prospective tive legislator with federal only drafted as a arises after the litigant and have such “contract” be en- judge has voted to rehear the case en banc in a federal forceable court as a matter of only and then a matter of individual view, deprived law. The federal courts cannot be judgment. my In questions these jurisdiction of their in this manner. negative. must be in the answered The opinion analyzing Court’s on the merits need- this case on the basis of lessly marketplace creates constitutional conflict metaphors rather than the re- limiting the jur- quired unwarranted еffect the analysis, constitutional the Court courts, isdiction of proce- federal and in its unnecessary creates constitutional conflict dure validates or “ratifies” permits deprive the actions of a when it the state statute to judge exercising conflicted in not jurisdiction a manda- courts of their federal legal tory duty prior voting rights Congress recusal to civil cases. Acts of such Substantively, rehear a case en banc. as 42 U.S.C. 1983 and 28 U.S.C. 1343 falsely Court frames jurisdiction the debate terms of define the of the federal courts tradeoffs, “marketplace” cases, way rights a facile civil Constitution avoiding important prevents withdrawing constitutional di- the states from or mensions of the case. Procedurally, limiting jurisdiction by adoption federal majority adopt permissive would have us of waiver or election of remedies rules. As attitude on I accept recusal. do not Court stated in Home Insur- position: issue, Court’s on the waiver ance Co. v. Morse:
961 The Constitution of the United States Railroad, Francisco 232 U.S. 34 3, judicial declares Art. S.Ct. [in § 2] 58 (1914), L.Ed. 621 power of the United States shall extend Supreme Court framed the issue as fol- equity to all cases law and arising lows: Constitution,
under that
laws of the Unit-
may
It
not be doubted
judicial
n
States,
ed
the treaties made or
power of the United States
by
as created
which shall made under
their authori-
the Constitution
provided
by
for Con-
ty, ...
to controversies between a State
gress pursuant
to its constitutional au-
State,
and citizens of another
and be-
thority,
power
is a
wholly independent of
tween citizens of different States.
state action and which therefore the sev-
jurisdiction
The
courts,
of the Federal
eral States may not by any exertion of
Constitution,
under this clause of the
de-
authority
form,
in any
directly or indi-
pends upon
regulated
and is
by the laws
rectly, destroy, abridge, limit or render
legislation
United States. State
inefficacious. The doctrine is so elemen-
jurisdiction
cannot
upon
confer
the Fed-
tary as to require no citation of authority
courts,
eral
nor can it
limit
restrict
to sustain it.
the authority given by
pur-
Congress in
Accord Terral v.
Co.,
Burke Constr.
suance
the Constitution. This has
U.S.
(1922);
L.Ed. 352
been
many
held
times.
Donald v. Philadelphia & Reading Coal
(20 Wall.) 445, 453,
87 U.S.
The
87 U.S.
in Home
(1874);
Insurance re-
L.Ed.
specting
III
see also
underpinned
Payne Hook,
(7
Article
Wall.)
Supremacy
(1868)
Clause.1
(state
State
L.Ed. 260
limitations on
cannot de-
jurisdiction
federal
feat
prohibited
jurisdiction
are
federal
under
confining juris-
this Clause
they
diction of
specialized
where
frustrate
laws
issue
court).
passed by Congress that
express
contain
attempts
to evade the obvious
grants of
jurisdiction,
such as the Supremacy
problem posed
Clause
by such a
federal civil rights statutes.
Suprema-
divestiture
jurisdiction
of federal
by argu
cy Clause is particularly relevant
in the
ing that
implicit
statute creates an
federal civil
light
context in
of the waiver “contract.”2 Although
ap
under
congressional
clear
empower
desire to
propriate circumstances an
individual
federal courts in
congres-
this area. This
release her
written con
*15
sional intent is
in
legislative
reflected
tract,
impermissible
for a state to
history of the antecedent to
1983. See
§
create a statutory framework which auto
Patsy v.
Regents,
496,
Bd.
U.S.
457
of
matically operates to
juris
waive federal
502-07,
102 S.Ct.
2561-63, 73 diction. See
Rumery,
Town Newton v.
of
(1982).
—
L.Ed,2d
U.S. -,
107 S.Ct.
94
long
cases,
a
(written
line of
Supreme
(1987)
405
waiver valid in certain
Court has invalidated
requirements
circumstances).
state
Supreme
The
foreign
corporations surrender their
clear
explicit
that “waiver” of
1983
right to remove cases to federal courts
a
question
claims “is a
of federal
law.”
doing
condition of
business
Newton,
within
Town
U.S.Const., VI, Art. cl. 2.
962
“waiver,”
by
rights.”
even when executed
mental
Ohio Bell Tel. v. Public
vidual’s
Comm’n,
292, 307,
release,
to
the Utilities
301
which serves
limit
U.S.
57
written
724, 731,
(1937).
S.Ct.
963 courts, by the tions rendered Ohio and thus ment.” Greene, Shew v. No. CA85-07-041 (Ohio creates needless conflict with the Su- App., 27, 1986) May (Westlaw, OH- law, premacy Clause. Under Ohio it is not database, 4). CS at type Given the of trig- clear that 1983 action would ever § conduct excluded from the scope of employ- ger provision. Rather, the Ohio waiver cases, ment in the foregoing no meritorious rulings from the Ohio courts indicate that 1983 claim subject should be to the § waiv- the constitutional violations which form the provision er of Ohio Rev.Code Ann. basis for the 1983 action would be out- § 2743.02(A)(1)(Baldwin 1986). § scope employment side the of and therefore long As as Ohio maintains its restrictive not waived. There is therefore no actual view of scope public of employment, conflict between the Ohio law and federal only source of conflict between federal jurisdiction.3 and state courts in this case is the normal Ohio case law is clear that merely filing friction caused jurisdiction. concurrent Court of Claims suit does not create an The mere existence jurisdic- of concurrent irrevocable waiver under Ohio Rev.Code tion is not problem itself a since 2743.02(A)(1)(Baldwin 1986). Ann. Rath- brought suits in state court. The er, inoperative the waiver becomes when question is whether Ohio’s jur- assertion of the Court of Claims determines that “the actually isdiction conflicts with federal law. act or omission manifestly outside the Again, we look interpretation to Ohio’s scope of the employee’s officer’s or office its own statute to determine the extent of employment or or that the officer or em- any conflict. ployee acted with purpose, malicious in bad When concurrent suits are filed faith, inor a wanton or reckless manner.” Court of Claims and the Court of Common 2743.02(A)(1)(Bald- Ohio Rev.Code Ann. § Pleas, the State of Ohio has instructed the 1986); win University McIntosh v. Cin- latter stay proceeding tribunal to its cinnati, until 116, 120, App.3d Ohio the Court of Claims rules on (1985). scope N.E.2d 324-25 employment issue. McIntosh v. Universi- The Ohio courts narrowly have so de- ty Cincinnati, App.3d 24 Ohio at scope fined the employment public 324-25; 493 N.E.2d at Stempel, Smith v. employees that no meritorious 1983 claim App.2d 36, 41-42, 65 Ohio 414 N.E.2d should subject ever be to the waiver. In A federal court could reach the Berke v. Department Ohio Public Wel- princi- same result under well-established 271, 273, fare, App.2d 52 Ohio 369 N.E.2d ples of abstention. England See v. Louisi- (1976), the Court held that it is Examiners, ana State Bd. Medical “clearly ultra vires” for employee a state sex, to discriminate religion, because of (1964). Thus, is no there conflict in this origin. Moritz, national Tyus 52 Ohio instance between the state and federal law App.2d 368 N.E.2d disposition coordinates the of concur- (1976), “any the Court held negligence, rent suits. slander, malpractice or medical would plainly scope supervi- not be within the
sion or
scope
authority
within the
...
III.
would be ultra vires
such employ-
[and]
decision,
question
ees.” In
unpublished
final
raised
another
case
appellate
Ohio
concerns
jurisdic-
observed that
what effect a federal court will
give prior
tion
the Court of
prop-
Common Pleas is
Court of Claims’ determination
er
alleged
when the
scope
employment.
legal
conduct “is
intentional-
As a
mat-
ly tortious and therefore outside
question
hardly
ter this
For
novel.
al-
scope of
employee’s
the state
employ-
years
most 200
the federal courts have
*17
opinion,
employment,
3.
In footnote 2 of its
the Court con-
there would be no waiver and
cedes that if
violations
constitutional
sufficient
therefore no
the Ohio statute
conflict between
to form the basis for § 1983 claims are deemed
jurisdiction.
and federal
by
scope
the Ohio courts to be outside the
of
judicata
preclusion
of res
and col-
sue
developed principles
parties
is to relieve the
lawsuits,
estoppel
multiple
in order
accommodate
cost and vexation of
lateral
judicial resources,
jurisdiction.
This is
conserve
dual federal and
and to encour-
age
adjudication by preventing
reliance on
body
legal principles
we should
inconsistent
present dispute,
instead
decisions.
See Allen v.
use to resolve
94,
McCurry,
states
requires
give preclusive
federal courts to
the Court of Claims held that the
because
judgments.
effect to state court
The Con-
law,
“discharge
accordance with
stitution’s Full Faith and Credit Clause4 is
against the law.” The Court seems to
implemented by the federal full faith and
ignore the fact that before
such “find-
statute,
(1982).
credit
28 U.S.C.
ing”
pre-
§
the Court of Claims can have
provides
pertinent part:
The statute
action,
clusive effect
must be
judged by principles
judicata
Acts,
of res
judicial pro-
Such
recоrds and
estoppel.
ceedings
thereof,
copies
collateral
so authenti-
cated, shall
have
same full faith and
judicata,
preclusion,
res
or claim
Under
every
credit in
court within the United
judgment
“a final
on the merits of an ac-
States and its Territories and Posses-
precludes
parties
privies
tion
or their
they
usage
sions as
law or
in the
relitigating
from
issues that were or could
State,
Territory
courts
such
or Posses-
raised in that action.”
have been
Allen v.
they
sion from which
are taken.
90, 94,
411,
McCurry, 449 U.S.
101 S.Ct.
414,
(1980).
pel).
determined in the first
therefore
instance
estoppel
apply,
Collateral
cannot
how-
state law. The
re
has
ever,
party against
peatedly
operate
unless the
whom the
held that
1983 does not
modify
application
earlier decision is asserted had a “full and
opportunity”
litigate
preclusion.
fair
Migra
the issue
either claim or issue
See
Prosise,
Educ.,
Haring
City
earlier case.
See
v. Warren
School Dist. Bd. of
2368, 2373,
U.S.
76 465 U.S.
5. The Courts of Claims statute
implead
Accordingly,
indi-
of Claims did
method
which the state could
the Court
the court.
third-party
defendants. Ohio
vidual officers as
jurisdiction to render
not have
2743.02(E)
1986).
(Baldwin
Rev.Code Ann.
However,
individuals.
so in this
since the state did not do
*19
presented is
455(d)(1) (1982).
The issue
whether the re- U.S.C.
“pro
The term
judge’s
ceeding”
cused
vote
caused
rehear-
meaning
455(a)
within the
of §
ing
should be counted.
interpreted
en banc
At a con-
should be
to encompass
judi
1987,
28,
January
proceeding
ference on
cial
judges
Court
vote on
whether
proceeding
panel
the en banc
to vacate a
voted to continue
decision
granting
allowing
parties
en banc
judge’s
unabated
review. Since a
without
petition
vote on a
opportunity
argue
to brief and
the effect of
rehear
be out
come-determinative,
amply
disagree
this recusal.
I
with the
demonstrat
Court
ed in this
it is inconceivable that
procedure.
If the recusal issue had
addressed,
official action on the motion
not be
properly
the Court
would
been
would
covered
the statute. As the Fourth
to conclude that
there
have
were not
Circuit has stated on
question,
this same
enough votes for en banc
review
“patently
judge
disqualified
who is
from
panel decision would stand.6
acting must not be able to affect the deter
circuit, majority
Under the rules of our
mination of
cause from which he is
judges
vote of all active
of the court to
barred.”
Lines,
Arnold v. Eastern Air
automatically
rehear a case en banc
va-
899,
(4th Cir.1983) (en banc),
712 F.2d
panel
cates the
decision of the court.
If
denied,
1040,
703,
cert.
464 U.S.
104 S.Ct.
judge disqualified
the recused
himself
(1984).
8. It should be distinguishing it. any opinion in case with this Limeco without decision cited similar facts to the 1974 ours decided after The Court practice relies on the of a pound few the law as it should come before justices argue that the them, the bias having partici- free from present current does case a recusal pated in its Id. at 98 (empha- formation.” problem. case before us we are added). sis John Dickenson of Delaware required to construe apply the federal expressed also concern over an “improper statute, recusal and I do not believe the powers.” mixture of Id. at 140. Elbridge Court’s past invocation practice consti- Gerry of Massachusetts doubted “whether legal tutes precedent on which we can rely. Judiciary ought to form part it, The fact that Chief Justice Vinson and Jus- they will have a sufficient check [against] tices Burton and Black did not recuse them- encroachments their department own selves legislation cases involving passed exposition their laws, which involved during their Congress tenure in is irrele- power of deciding on their Constitutional- vant: practice does not constitute ity.” Id. at 97. precedent. There is no federal case autho- The same kind of concern that we have rizing a judge hear the constitu- *21 about the participation of the recused judge tionality of a statute he drafted spon- and in the case before us—that judges should legislature. sored Moreover, as dis- be “free from the bias having of partici- cussed in legislative history to the stat- pated in [the formation” —led law’s] ute, it is Congress clear that in enacting Constitutional reject Convention to over- the current statute intеnded to impose a whelmingly the “improper mixture” of stringent more standard previous- than had judges politicians in the Council of ly point existed—a the Court itself con- Revision. pages cedes at 949-950. supra See pages Therefore, 966-967. reasons, for these Accordingly, I dissent. actions of justices by named the Court precedent are not for the action approved BOYCE MARTIN, Jr., F. Judge, Circuit here. Furthermore, I find the Court’s cita- dissenting. tion of state case law to be irrelevant in my view, In construing absent another applying the vote on recu- federal grant sal whether to rehearing banc, statute. en dispute must be resolved on the merits. I My concern with recusal in the present disagree with interpretation of Rule case rests on fundamentally separation of 35(a) of the Federal Rules Appellate of power Indeed, considerations. such consid- Procedure found the order issued in erations can be traced to the Constitutional v. Clark American Broadcasting Compa Convention of 1787 where there was delib- Inc., nies, F.2d Cir. eration proposal on a to form a “Council of 1982),however until there is a new decision Revision” to approve review and or disap- by court, the full we are bound prove our acts passed by the national and state precedent. legislatures. The proposal provided for membership on the Council “the Execu- disagree I with the majority on the mer- tive and a convenient number Na- of its. The involved, state statute Ohio Re- tional Judiciary.’’ 1 M. Farrand, The vised Code 2743.02(A)(1),states that a Records the Federal Convention civil action filed in the Claims (1937 ed.) (1966 ed., rev. 2d printing waives other cause of action 1974) (emphasis added). officer or employee based on the Although endorsed delegates such same act or as omission. If literally read I James Madison of Virginia, del- think the improperly several statute restricts the egates opposition voiced jurisdiction plan to the to in- of a federal court to entertain a clude members of the judiciary part as cause action under section 1983. Conse- the Council of King quently, Revision. Rufus opinion it is my that statute proposed Massachusetts delay of con- must be construed waiving as state created sideration of the plan, “observing Council only, federally not created causes that the Judges ought to be able to ex- such action any event, Leaman’s. may impose con- is that it limitations ac- have waived said to cannot Leaman relinquishment require ditions which she is clear unless it court cess rights. If the state of constitutional avail- avenues she two had was aware constitution- of one compel the surrender claim. section 1983 raising her able favor, it of its right as a condition al any infor- us is devoid before The record manner, compel a surrender may, in like making a assist would mation guaranties of all. It inconceivable point. on this decision valid Unit- of the in the Constitution embedded dis- reverse I would manipulated out may thus be ed States further case for and remand trict of existence. proceedings. Comm’n, Trucking Co. Railroad Frost 593-94, Judge, JONES, Circuit R. NATHANIEL L.Ed. dissenting. explain my position like to I also would on dissent Judge Keith’s fully I concur recusal of the “mid-stream” the matter is obvi- This court of this case. the merits pro- en banc on the instant its effect integrity split over painfully ously and view, is not so my the issue ceedings.1 In con- import and the of section 455(a) 28 U.S.C. the enforcement much Rights Act rights that the Civil stitutional interpretation and proper (1982), but my Prom dissenter’s protect. seeks rule, 6th en this court’s banc application of Mr. Jus- even it is small solace
perch, these 14(a).2 Today’s culmination Cir.R. con- folly of recognized the tice Sutherland light of recent proceedings, banc en bartering: stitutional *22 to ac- events, а refusal to tacit amounts to incongruity palpable a It would be local effect of our knowledge practical the legislation of an act strike down just a that rule in apply to rule and banc en divestment, which, express by words of manner. evenhanded guar- of strip the citizen seeks to Constitution, to but are materi- facts by Only the federal uncontested anteed a few panel result is that the same a by first my act which concerns. uphold an al sur- a guise a the of of this court reversed accomplished under decision los- case. The exchange a valu- court this right in for a the district render of of recon- for en banc petitioned ing party the state threatens then privilege which able a 14. After neces- local rule It is not under to withhold. sideration otherwise (8 majority that, a bare judges, as active proposition of challenge polling the sary to banc review. 15) of en state, in favor rule, having power voted the of general a the rule, vote had our that grant altogether, Pursuant deny privilege a the vacating panel’s of to im- effect it sees fit immediate as upon condition such case, a reargument After in that decision. the state power the of pose. But deciding the cast court who of our unlimited; the member and one is not respect Judge’s agree the Chief with judge I am unable of this regrettable fine that a 1. It is most banc interplay court’s en the analysis of this object the become unfortunate court has statute, at set forth the recusal procedure and Nonetheless, forthrightly admit- dispute. has he ab- opinion. We separate cannot I of Part his might rea- case impartiality in this ted that his with responsibility to deal of our ourselves solve the effect of circuit’s sonably questioned. suggesting by this that recusal a majority opinion at foot- in the The discussion by 28 procedure is "controlled" en banc essentially misses accompanying text note Fed.R.App.P. in addition 46(c) and U.S.C. historically interesting, but irrel- point. It is history the this unique rule. to our local nonetheless, years ago my provisions concern evant to separates the it from material case Supreme procedural statutory standards leaves different standards and under codified doorstep. our impression manda- at first question recusal did not consider Court Justices however, Chief am, In the instant with the tory situations. full in similar accord I dissent, his after at Part II himself set forth has judge Judge’s partial court recused of our discussing the unconstitution- opinion, We as separate casting vote. outcome-determinative the Ohio provision of ality duck—that with—not left deal are Claims Act. fact. vote to rehear in polling reeused himself an impermissible limitation on federal juris- from a merits, vote due ap- to an diction. Since the majority opinion does pearance of partiality. my To knowledge, not set out the in full, statute it is set out judge’s self-recusal was not here: motivated by any circumstances different from those (A)(1) The State hereby waives im- its existing at the time the en banc polling. munity from liability and consents to be sued, and have its liability determined, in absolutely crucial, It is as an initial mat- the court of claims created in chap- this ter, to understand the effect of that vote in ter accordance same rules of favor of en banc reconsideration, and to applicable law to suits private between distinguish it, instance, from a vote of parties, except that the determination United States Court on peti- liability is subject to the set limitations tion for ofwrit certiorari to panel review a forth in chapter this and except pro- grant decision. The of a writ of certiorari vided in (A)(2) division of this section. is a completely neutral consent to review To the extent that the previous- state has the most recent lower court decision. A ly sued, consented to be chapter has vote to banc, review en contrast, oper- no applicability. ates to stay the issuance of this court’s Except case of a civil action filed mandate, panel decision, vacates state, filing a civil action in the schedules a full reconsideration of the dis- court of claims results in a complete judgment. trict court In situations where waiver of any action, cause of based on panel had voted to reverse the district the same omission, act filing court, a vote to rehear en banc effectively party has any state officer or changes the posture of parties to re- employee. The waiver shall be void if flect the status quo ante. the court determines act or omis- But for the vote of the judge, fifteenth sion was manifestly outside the scope of panel decision would not have been the officer’s or employee’s office or em- vacated and today’s opinions would never ployment or that the officer or employee have been issued. Undeniably, that vote acted with malicious purpose, in bad was outcome-determinative. Equally unde- faith, or in a wanton or reckless manner. niable is the fact that it was cast one In my view, resolution of present *23 who later admitted that his impartiality dispute turns whether the court of subject question. By allowing that claims made a finding as to whether the stand, vote to we wink at the reality of the individual defendants acted “manifestly conflict. There is no basis in common the scope outside of ... employment” or sense for not giving the instant recusal “with purpose, malicious in faith, bad inor retroactive effect under our en banc rule. a wanton or reckless manner.” It true, To the extent that we as a court find our- as majоrity points out, that the court of selves in an unprecedented and embarrass- claims determined termination of ing position, only just way to extricate Ms. Leaman’s employment “was accord- ourselves is to rescind the order vacating ance with the However, law.” it is clear panel decision and issue the mandate on that the court of claims focused upon the that decision. fact that Ms. Leaman was a probationary employee, and thus had no property inter-
MILBURN, Judge, Circuit dissenting. est her continued employment. The primary issue confronting the court The court of claims went on to note that involves the interpretation of Ohio Rev. Ms. Leaman had filed a section 1983 action Code 2743.02(A) regard to whether in federal court. It finding made no on the the plaintiff-appellant under the circum- issue of whether the individual employees stances here involved waived her federal acted outside scope of employment. claims employees defendant language used the court of claims the State of Ohio. In my opinion, we need judge in dismissing Ms. Leaman’s action not reach under present circumstances was: “The issues of the of a '1983' the issue of whether the statute constitutes action apparently being are determined difficulty This court has court. pending understanding why the case involving the same of Claims namely the party, the same issues of Ohio.” State context, courts con- analogous Ohio
In an action when proper course of
sidering the filed in the court of suits are
simultaneous juris- general the state court claims
diction, the action have concluded employees cannot be individual
against the court of claims makes until the
dismissed scope employ- regarding
finding See, University v. e.g., McIntosh
ment. Cincinnati, App.3d 24 Ohio Depart- v. Hoene (1985); Von
N.E.2d 321 Correction, ment Rehabilitation 868, 872 486 N.E.2d App.3d 20 Ohio App.2d Stempel, (1985); Ohio Smith Given
36, 414 N.E.2d present finding in the of such a
absence em- against the individual action proceed. should be allowed
ployees effectively denies majority opinion to have her opportunity
Ms. Leaman individual defendants view, my such forum. considered contemplated by the statute is not
a result courts by the Ohio it has construed been I Accordingly, manifestly unfair.
and is
respectfully dissent. AND AUTO
ALLIED ACCESSORIES *24 INC., COMPANY, PARTS Plaintiff-Appellant, corporation,
Michigan CORPORATION,
GENERAL MOTORS corporation, a Delaware
Defendant-Appellee.
No. 85-1989. Appeals, States Court of
United
Sixth Circuit. 11, 1986.
Argued Dec. July
Decided